Delay in applying to set aside an ex parte decree requires sufficient explanation; failure to provide such justification results in dismissal of the petition.

1 Heard.

2. Rule. Rule made returnable forthwith.

3. By the present petition, the petitioner is challenging the order dated 04.10.2016 passed in M.J.C. No.1/2015 by the learned Civil Judge Junior Division, Arjuni Morgaon.

4. The respondent No.1 had filed Regular Civil Suit No.22/2012 seeking a permanent injunction against the petitioners, and respondent No.2 contending that he is the owner of the suit property and also in possession of the suit property. The petitioners and respondent No.2 appeared in the said suit by engaging an Advocate on 05.09.2012. On 17.04.2013, the learned Civil Judge Junior Division passed an ex parte decree against the present petitioners restraining them from disturbing the possession of respondent No.1/original plaintiff.

5. According to the petitioners, they got knowledge of the decree in the month of September 2014. Therefore, on 15.09.2014, applied for certified copies. The petitioners filed an application to set aside the ex parte decree by way of M.J.C. No.1/2015. By the impugned order, the said application for condonation of delay in applying setting aside ex parte decree has been rejected.

6. The Trial Court, while rejecting the application, had recorded a finding that the petitioner No.1 herself, in her cross-examination, admitted that she was aware of the passing of the decree in 2013 itself. The Trial Court was, therefore, of the opinion that it was mandatory on the part of petitioners to explain the delay from the date of knowledge of decree. Still, the petitioners have chosen not to explain the said delay. The explanation in the application is from September 2014.

7. The petitioners have, therefore, filed a present petition challenging the order of refusal to condone the delay in filing an application to set aside the ex parte decree. This Court, while issuing notice on 01.09.2017, recorded a statement of the Advocate for the petitioners that the petitioners will not claim that petitioner. No.1 is in possession of the suit property.

8. I have heard learned Advocate for the petitioners. According to him, a delay of 1 year 9 months in applying setting aside ex parte decree was not intentional or malafide. According to him, the petitioners did not know the decree in September 2014. According to him, the valuable rights in the immovable properties are involved; therefore, delay in setting aside the ex parte decree deserves to be condoned.

9. I have carefully considered the submissions on behalf of the petitioners.

Undisputedly, the decree for an injunction was passed on 17.04.2013. The decree of injunction has been in force for last more than 9 years. While rejecting the application for condonation of delay, the Trial Court has placed reliance upon cross-examination of petitioner No.1, wherein the petitioner No.1 has admitted that she was aware of the passing of the decree in 2013 itself. The Trial Court was, therefore, right in observing that it was for the petitioners to explain sufficient cause for not filing an application to set aside ex parte decree. Once the cause shown in the application for condonation of delay turns out to be false, Trial Court was justified in rejecting the application for condonation of delay, as there is no explanation from the date of knowledge till at least September 2014. In the absence of sufficient cause for non-filing application to set aside ex parte decree for a period of 1 year and 9 months, the Trial Court cannot be faulted for rejecting the application for condonation of delay. Therefore, there is no merit in the petition.

10. The petition is dismissed. Rule is discharged.

11. Pending Civil Application(s), if any, stand(s) disposed of.